SPECIAL COMMISSION.

HC Deb 06 June 1882 vol 270 cc237-97

Clause 3 (Constitution of Court of Criminal Appeal, 40 & 41 Vict. c. 57).

MR. MARUM

, in moving, in page 3, line 9, after "The," to leave out to the end of sub-section (3), and insert— Appellant shall be acquitted unless the whole Court of Criminal Appeal concur in the determination of the appeal, said, the object of this Amendment was to provide that the non-agreement of the Court of Appeal should virtually amount to acquittal of the appellant. In the Supreme Court the principle of unanimity was adopted; but the Government did not seek to put that principle in force in regard to the Appellate Court. He thought it was desirable that they should accommodate themselves as much as they could to the principle of the jury system, and in the jury system, both in England and Ireland, unanimity was required. It must be remembered that they were seeking to deprive Her Majesty's subjects in Ireland of the right of trial by jury, and it was desirable to retain, as far as possible, every part of that right which it was not absolutely necessary to dispense with. In the next place, unanimity was one of the main principles of the Bill. It was required that three Judges should be unanimous in the first instance, and unless they were unanimous there was an acquittal. Therefore, neither one nor two Judges were sufficient to procure a conviction. In the Appellate Court there were four or five Judges, and, it might be, more. He would take a case where there might be seven. In that case, if three of the Judges were in favour of an acquittal, and four were in favour of a conviction, the prisoner or the accused would be convicted—that was to say, that three Judges would not be able to procure an acquittal in the Appellate Court, although the dissent of one Judge would procure an acquittal in the Court of First Instance. He therefore thought it was not an unreasonable matter, seeing that, under the present law, there must be unanimity on the part of the jury before they could convict a man of a criminal offence, that they should endeavour to accommodate the same principle to the Court of Appeal. They were now taking very exceptional powers, which would deprive a large number of the subjects of Her Majesty of the right of trial by jury; and he thought it would be admitted that the effect of that course would necessarily be to lessen the confidence that was reposed in the administration of justice. He thought they ought to do nothing which they could possibly avoid in this Bill to increase the want of confidence which existed in Ireland; and certainly to deprive the Appellate Court of the unanimity which was necessary in the Court of First Instance would very materially shake the confidence of the Irish people in that Court. This was a very important thing to look at in a country where there was already, as he had said, a want of confidence, to a certain extent, in the administration of justice. If he were inclined to enter into statistics, he could show that one of the greatest obstructions to the peace and tranquillity of Ireland was this want of confidence in the administration of justice; and he contended that the adoption of provisions of this kind would very materially increase that want of confidence. It certainly was an extraordinary thing to say that three Judges should not procure an acquittal in one case when the dissent of one Judge in another case would be amply sufficient. The people of Ireland would certainly not be able to understand the distinction; and he thought they were bound to do all they could to show that this Court, exceptional as it was and objected to as it was by the country and the Representatives of the Irish people, would be as little objectionable as possible. He begged to move the Amendment of which he had given Notice.

Amendment proposed, In page 3, line 9, after "The," leave out to end of sub-section (3), and insert "appellant shall he acquitted unless the whole Court of Criminal Appeal concur in the determination of the appeal."—(Mr. Mar urn.)

Question proposed, "That the words proposed to be left out stand part of the Clause."

THE ATTORNEY GENERAL (Sir HENRY JAMES)

said, the hon. Gentleman was not quite correct in stating that this Amendment would put the Appellate Court in the same position as a jury, and would secure to a prisoner the same advantages as he would have if tried by a jury. The hon. Member sought to make out that if one juryman differed, the prisoner would be acquitted. That was not the fact. If one of the jury differed from the rest, there was a new trial. The prisoner, therefore, in that case, was put on his trial a second time; but by this Amendment the hon. Gentleman provided that, in case of a disagreement on the part of one Judge, there should be an absolute acquittal, and that if out of eight Judges seven were in favour of a conviction and one differed, that difference should prevail to the extent of declaring that the man was not guilty. He felt bound to oppose the Amendment, because, although the Government thought there should be unanimity in the first tribunal in order to secure a conviction, they were, nevertheless, of opinion that the second tribunal might overrule the conviction by a majority of Judges. That would practically leave the law as it stood at the present moment.

MR. LEAMY

said, that the appeal under this Act amounted to a new trial. It was proposed virtually to give the prisoner a new jury. In the Court of First Instance, if the three Judges were not entirely unanimous, the accused person was acquitted, so that one Judge out of three could bring about an acquittal, and the man could not be tried again. The new Court of Appeal would constitute a perfectly new jury, composed of five Judges, none of whom would have been upon the first jury. Two out of these five Judges might think the man innocent, and there was a possibility that one out of the Court of First Instance might have considered the man innocent.

THE ATTORNEY GENERAL (Sir HENRY JAMES)

said, the hon. Member was entirely mistaken, because in the Court of First Instance the Judges must be unanimous.

MR. LEAMY

said, he accepted the correction. Unless the three Judges were unanimous the man would be acquitted. Even if two were in favour of a conviction, the other dissenting Judge would bring about an acquittal. But, in the case of five Judges in the Court of Appeal, two might be in favour of an acquittal, and, nevertheless, if the other three went the other way, the conviction would hold good. Take the case of a man charged with murder, and suppose the man were convicted by the Court of First Instance, and the case were sent up to the Court of Appeal. Suppose, then, that two out of five Judges held that the conviction was wrong, would it be possible, in the face of public opinion, to hang that man, when two of the Judges who tried him were of opinion that he was innocent? He submitted that it would not be possible to do so, and, therefore, there was a great objection to allow the second tribunal to do that which the first could not do.

MR. HEALY

said, there was one other consideration which had been raised, and that was that the clause as it stood would, on the whole, degrade the Judges. It was contended that the Court of First Instance was placed on the low level of an ordinary jury in a horse-stealing case. In such a ease one juryman could upset the entire verdict of the rest, and the same consequences should follow if there were one dissenting Judge in the Court of First Instance. But in the Court of Appeal it was contended that even two dissenting Judges would not be able to bring about the same result. If the proposal that there should be unanimity in the one case was good, why should it not be necessary all along the line? If they were going to give a verdict to a majority in a special Bill of this kind, after having constituted the Judges the jurymen, why not apply the same principle to all cases? If it was available in one particular instance, why not adhere to it always? In the Court of Appeal they might have one or two Judges differing from their colleagues, and, although, as Judges, they were men of judicial power, calmness, and great decision, they were not to have the same weight and. authority as an ordinary juryman in the most trumpery criminal case. The disagreement of a juryman with his colleagues would upset the whole trial; but one of the Judges of the land, a man who was not likely to arrive at any conclusion until he had given the case the most careful consideration, and who would fully appreciate the gravity of the position, was thought so little of in this Bill that, although he disagreed with his colleagues, his dissent would not be sufficient to upset the conviction. Was this the position Her Majesty's Government wished to take up? In establishing the Court of First Instance they praised the Judges to the highest possible pitch. They said the Judges were a tribunal they must all respect, that they were men of impartiality, standing, candour, and so forth; but, nevertheless, they were not of sufficiently high character to warrant Parliament in intrusting to them the lives of Her Majesty's subjects. In an ordinary tribunal, if one man thought that a man put upon his trial for a criminal offence was not guilty, he could upset the whole proceeding; whereas one of the Judges of the land, in a case of murder. was to have less power than a juryman in an ordinary case of felony. This Bill was a bundle of inconsistencies from first to last; but of all the inconsistencies of which the Government were guilty, the worst was in placing the measure before Parliament with two voices. While, on the one hand, they praised the Judges as the only tribunal which could give a fair and impartial decision, on the other, when it came to a question of appeal, they thought so little of them that they refused to repose in them the powers that were given to an ordinary juryman.

SIR WILLIAM HARCOURT

said, he did not think that the Judges would be degraded by this proposal. If they were, they had been degraded long ago, because upon questions of law which did not deal with questions of fact, a man's life might depend upon a majority of one. In the Court of Criminal Cases Reserved questions of law in a murder case were decided by a majority. There might be 11 Judges, or any number, sitting in the Court, and a decision involving the life of a man would be determined by the vote of a majority, although the majority might, perhaps, be only one. One Judge could not, therefore, in that Court veto the opinion of all the rest. In the House of Lords, which was the highest Court of Appeal, the Lord Chancellor had no power to veto the opinion of the rest of his Colleagues if that opinion was given against him; and, therefore, in all the cases where the Judges acted as a Court of Appeal, the decision was really by a majority, and sometimes by a very small majority indeed, and the Judges did not exhibit any appearance of having been degraded by the practice. It was quite true that in some parts of the United Kingdom, although not in all, they adopted the principle of unanimity; but many people thought that, excellent as that principle was, it was one which might be reformed. But as regarded the position of the Judges being affected by the fact that one Judge had no power to veto the decision of the majority, that was the ordinary practice at the present moment, and he saw no reason whatever why it should be changed.

MR. METGE

said, he thought that the answer of the right hon. and learned Gentleman, as far as it went, was a good one. But the Government seemed to evade the question as to what the grounds were for leaving the case to the determination of the majority of the Judges. He could not understand why in one case unanimity was necessary, while in the other the opinion of the majority was sufficient. If the Government had no confidence in the decision of the majority of Judges in the Court of First Instance, why should they have confidence in the decision of the majority in the Court of Appeal? He could not see any difference between the two cases, and he thought the Government should give some strong ground before the Committee consented to depart from the rule which had been already laid down in regard to the Court of First Instance.

MR. SYNAN

said, he could not concur with his hon. Friend behind him (Mr. Metge) that the answer of the right hon. and learned Gentleman the Home Secretary had at all met the real objection which was raised by this Amendment, because his reference to questions of law, decided by the Court of Appeal, had nothing whatever to do with this case, which was in reality that of a new trial before a new tribunal. At the same time, he thought the Amendment of his hon. Friend went a little too far. He thought a disagreement among the Judges ought not in the Appeal Court to secure an acquittal; but that unanimity ought to be necessary in order to secure a conviction, so that a man might be put upon his trial again. Therefore, if his hon. Friend would shape his Amendment in the manner he (Mr. Synan) suggested, ho would certainly support it. The argument of the hon. and learned Attorney General (Sir Henry James) had nothing to do with the case, because the hon. and learned Gentleman had placed the question on an analogy with the ease of a new trial before a new jury, asserting that if they disagreed there would not be an acquittal, but that the man would be put on his trial again. But unless this was a new tribunal deciding on a question of fact, the only effect of a disagreement among the Judges, in order to make the analogy complete, would be that a conviction would not be secured, but that the accused would be put upon his trial again.

MR. GIBSON

said, that the suggestion made by his hon. and learned Friend the Member for the county of Limerick (Mr. Synan) practically amounted to this—that if one Judge dissented from the decision of the Court of First In-tance, it would be impossible to obtain a decision upon anything. He was bound to say that the Bill, as it was drafted, was exceedingly mild. They had in the Court below given the power to one Judge to overrule the decision of two. That, in itself, was rather a strange power to give; but he would pass that by, seeing that it was already decided, and he had no wish to go back upon it. But to say that in the larger tribunal of five Judges they would allow one to negative the possibility of a decision being given by the Court of Appeal was absurd. He failed, himself, to see any argument in support of the Amendment; and, unless everything was to be reversed according to the ordinary rules by which judicial tribunals were governed, he did not see how a Committee could adopt the principle which had been proposed.

MR. REDMOND

said, it seemed to him that the argument of the right hon. and learned Gentleman who had just spoken did not count for very much. The right hon. and learned Gentleman said that the action of a single Judge would be sufficient, if the suggestion of the hon. Member for Limerick (Mr. Synan) were adopted, to overrule the decision of the Court below.

MR. GIBSON

And his four colleagues in the Court of Appeal?

MR.REDMOND

Certainly. But that did not affect what he was about to say. It was, in fact, not really a new trial upon the question of law, as in the case of a criminal appeal for reserved cases, but a completely new trial on questions of fact as well as questions of law. The whole circumstances of the trial might be changed. New facts might be disclosed that were not known at all to the Judges who decided in the first instance; and he must say that it seemed extraordinary to him, in a case of this kind, that the action of a single Judge should be sufficient to secure the conviction and, perhaps, the execution of the prisoner. He had always thought that in criminal cases of this kind the benefit of the doubt was to be given to the accused man; but, in this instance, there might be so strong a doubt as to the facts that two Judges out of five might be convinced that the man was innocent, and yet that doubt would not be sufficient to save the prisoner, perhaps, from execution. It seemed to him that there was another matter that was raised by this Amendment, and that was the way in which the Irish people would look at this tribunal. They must take into consideration the feelings with which the Irish people would view this Bill. They would view the measure, from beginning to end, with distrust; and, instead of attempting to invest the tribunal they were creating with anything that would increase the confidence of the people, they were doing all in their power to diminish that con6dence. When the Irish people saw that, in a particular case, a reasonable doubt was entertained by two Judges out of five, and yet this was not sufficient to save a man from execution, they certainly would have very little confidence in the tribunal; and, as he desired to secure a fair trial for every criminal who might be tried under the Bill, he trusted that his hon. Friend the Member for Kilkenny (Mr. Marum) would press the Amendment to a division.

MR. FIRTH

said, the difficulty of the case was that they were dealing with an entirely new and exceptional tribunal. The ground upon which they claimed to establish this tribunal was not that the verdict of the jury ought to be unanimous, but that the verdict would be likely to be biassed by, or subjected to, intimidation. Upon questions of fact, he failed to see that any case had been made out for allowing the judgment of the Court to be that of the majority. With respect to questions of law, the observations of the Home Secretary would certainly apply; and the majority of the Judges might very well decide on questions of law. But, although the decision of the Court of Crown Cases Reserved was given by a majority, it must be borne in mind that it was never given upon a question of fact. Therefore, when sitting as jurymen and judges of fact, he was of opinion that each Judge should have a veto, such as jurymen now possessed.

MR. NEWDEGATE

believed that a question had been raised by an hon. Member near him as to the Bill, involving a stigma on the character of the Irish Judges. Now, the case of Ireland was an utterly distinct and exceptional one. The Government had declared that Irish juries could no longer be trusted to give fair and impartial verdicts upon the facts of a criminal case submitted to them, and Parliament had assented to that proposition. All this proved that they were dealing with a totally exceptional case; and he thought that a special tribunal ought to be constituted for the trial of cases under such exceptional circumstances. In short, he shared the opinion which he knew prevailed among a large number of Members on that side of the House—that it would have been better to establish Martial Law than to constitute this new tribunal. As the case was a totally exceptional one, so the treatment should be exceptional; and all attempts to accommodate the forms of the Common Law to a state of things which was practically a state of warfare were most objectionable. He thought it was a dangerous precedent, that it would be perfectly understood, and that it was calculated to undermine the respect which the people should entertain for the Common Law. He hoped the Committee would excuse him for expressing so strong an opinion; but he certainly thought that the employment of the Irish Judges upon the proposed tribunal was a grave mistake.

MR. R. T. REID

said, the declaration of Martial Law would really have meant no law at all; and the last example of establishing Martial Law in Jamaica was by no means satisfactory. At the same time, it appeared to him that it would be a most shocking thing if any man in Ireland were to be executed by a Court consisting of five Judges, when two out of the five were of opinion that he was innocent. It must be remembered that the Judges were by this Bill made judges of fact in place of juries; and it was not unreasonable to extend to them the principle which now applied to the decisions of juries. Juries must be unanimous, or otherwise there could be no conviction; and when, instead of 12 jurymen as the first tribunal, they were to constitute a Court of three Judges, and refer their decisions to five other Judges sitting as a Court of Appeal, it was not unreasonable to say that, instead of the unanimous opinion of 12 jurymen, there ought to be the unanimous opinion of the Judges who sat in the place of the jury before a conviction could take place.

SIR EARDLEY WILMOT

said, he thought that there was great force in the observation of the right hon. and learned Gentleman below him (Mr. Gibson), that it was objectionable to require the decision in one case to be that of a majority, and in the other to be unanimous. It was proposed by this section to refer appeals to a Court of five Judges, the conviction being affirmed if three were in favour of it, although two might be in favour of an acquittal, and these two, in professional language, strong Judges. He quite agreed with his hon. Friend near him that if such a case as that did occur there would be a feeling on the part of the people of Ireland that the view of the two Judges who were favourable to an acquittal should not be set aside. Therefore, if there happened to be a powerful public opinion upon any particular case, a difficulty might arise. If unanimity was impossible, he would suggest that they might make the proportion greater. Perhaps if it were decided that four-fifths should be in favour of a conviction, they might get rid of a good deal of the objection.

SIR WILLIAM HARCOURT

said, he thought that the arguments advanced on both sides were rather self-destructive. His hon. Friend the Member for Hereford (Mr. Reid) supported the view of the hon. Member below the Gangway (Mr. Synan), that there should be a new trial in case of a difference of opinion; but he thought, on consideration, that his hon. Friend would see that there could not be a new trial. Who was to institute the new trial? Was it to be the very same tribunal who had given the first opinion? The Judges being appointed by rota, there would be nobody else to send to it. In criminal cases, when they had a new trial they had a new jury. Then it was said that they ought always to give the prisoner the benefit of the doubt. Every Judge in the Court, sitting as a juryman, would be bound to give the prisoner the benefit of the doubt in the decision at which he arrived; but it was not necessary to give prisoners the benefit of the doubt in cases of criminal appeals, as they were now heard. Doubts might exist in matters of law, but not upon matters of fact; and if there was a doubt in a matter of law it was just as material to the prisoner as a doubt upon a matter of fact. But they did not give the prisoner the benefit of that doubt. In the Court of Criminal Appeal there might be five or six Judges who entertained a doubt or a strong opinion that, by law, the prisoner was not guilty. But did they give him the benefit of that doubt? Not at all. There might be five Judges on one side, and six on the other. The five might think that, by law, the prisoner was not guilty; but he was, nevertheless, liable to be executed if the other six thought that he was guilty. Then, again, it was argued that a strong popular feeling would exist against the execution of the criminal sentence if one or two Judges felt a doubt as to the propriety of the conviction; but that equally applied to a case where five or six Judges entertained a strong opinion that by law a man was not guilty. In point of fact, all these arguments as to the feeling of a doubt in a case were much more proper to be addressed to the Crown, in regard to the exercise of mercy, or upon the question whether the actual sentence should be carried out. No doubt, in such a case it would become a proper matter for consideration. His hon. and learned Friend the Member for Chelsea (Mr. Firth) said the difference between doubts of law and doubts upon questions of fact was very great. He (Sir William Harcourt) was unable to appreciate the distinction. What was the difference between entertaining a doubt whether in fact a man was guilty or whether in law he was guilty? To his mind there was no distinction at all. He could not see why a man's life should be more in jeopardy upon questions of fact than upon questions of law. He ought to have the full benefit of the doubt in either case, and he got the benefit. It seemed to him that both the doubts amounted to exactly the same thing. But upon questions of law it was not so necessary that there should be unanimity as upon questions of fact. It was necessary to guard, in the first instance, against any careless mode of procedure; against anything having been overlooked. It was not unusual for something or other to be overlooked in the first consideration of the matter, and, therefore, it was most desirable to afford an opportunity for re-consideration. It was with this view that the Bill proposed to give an appeal; but it was not considered necessary, in the case of an appeal, that the decision of the Judges should be unanimous, but that if the majority were of opinion that the man was guilty the conviction should then stand.

SIR JOSEPH M'KENNA

said, he wished to point out the great distinction between the law in regard to cases of criminal appeal, and the law as it would exist after the passing of this Bill. The cases reserved for the decision of the Judges in criminal appeals were altogether dependent on points of law, and the Judges decided whether the law was clearly stated, and was applicable to a certain condition of facts which had been previously presented to the consideration of the Judges on points of law alone. But he understood that the appeal under this Bill was not entirely an appeal on points of law, but that it amounted to a complete re-hearing of the case; and, for the life of him, he could not see why they should require, in the first instance, complete unanimity or a complete acquittal; and, in the second place, should give to the majority of the Court, on re-hearing, the right to say that the judgment of the Court below should pass without question. In fact, what they did in creating this Court of Appeal at all was to afford facilities for the consideration of doubts as to the justice of the first conviction. There was no way of getting out of the difficulty except by having an appeal to a single individual; and he ventured to think that an appeal to a single Judge would be better for the prisoner than an appeal to a number of Judges, if the majority were to decide the case; and for this simple reason, that the appeal to a single Judge, if that Judge happened to be in the prisoner's favour, would acquit him, whereas the appeal to a number of Judges merely meant this—that if the prisoner's case were not sufficiently strong to secure a majority in its favour on questions of fact as well as of law, the judgment of the Court below would stand. They were all familiar with the continual reversal of judgments in the Courts below, and it was rarely asserted that in that reversal there was any denial of justice. On the contrary, it frequently happened, on the re-hearing of a case, that new lights were flashed upon it, and it became, as it were, a trial de novo. What it was proposed to do in this case was, that where there was a case for a second trial, and sufficient material to shake the judgment of the Court below— indeed, if there was enough to shake it almost completely— nevertheless, if by a majority of one the judgment of the Court below was affirmed, the prisoner would be left for execution. It was not a sufficient answer to the objections that were raised to say that such a case would commend itself to the mercy of the Crown. The point was, not whether the mercy of the Crown should be extended or not. It was whether a man should have been found guilty in the first instance or not, and whether they were to decide that the judgment of the Court below ought to be reversed or not. His own opinion was that the Court of Appeal should decide, once for all, without merely shaking the decision of the Court below. There might he new questions of fact throwing an entirely new light upon the whole of the case, which new questions of fact might not have been submitted to the Court below at all. If it were considered necessary to obtain the confidence of the people of Ireland, he thought the Government should satisfy them that the judgment of the Court below was unshaken, and that, although there had been practically a new trial on questions of fact, no doubt had been expressed as to the propriety of the first decision. It was very well known that cases were frequently remitted from the Courts above to the Court below, with instructions to inquire into statements of fact, so that, in point of fact, cases frequently did occur in which the Court above were of opinion that some questions which had been disposed of ought to be re-considered. He thought that in one shape or another they ought to require the unanimity of the Court before they passed a sentence upon a man which involved the forfeiture of his life.

MR. CHARLES RUSSELL

said, his right hon. and learned Friend the Home Secretary seemed to think there was an analogy between this case and the cases referred to in ordinary Courts of Appeal. He (Mr. Charles Russell) failed to see the analogy. On the contrary, there was a wide distinction to be drawn between the majority of Judges deciding upon such questions as those which would be referred to them under this Bill, and the majority upon the ordinary questions of law which were sent up to the Court of Appeal. The questions which came before the Court of Appeal were legal questions; but they were legal questions which assumed admitted questions of fact, which brought home to the prisoner clear moral guilt; and the question which went before the Court of Appeal was generally whether certain technical difficulties existed in regard to the law which had been provided as a safeguard for liberty and life. It seemed to him, therefore, that there was a clear distinction between the two cases, and that the analogy did not hold good. In this case the Judges were to be judges of fact. They were to be the jury as well as the Judges, and the ordinary rule of law with regard to the decisions of the jury was that there should be unanimity. His right hon. Friend seemed to see some difficult}' in having a new trial. He said there was no machinery in existence by which a new trial could be ordered. But that did not seem to him (Mr. Charles Russell) to be any real difficulty at all. If the Act provided that there should be a new trial, then the Lord Lieutenant would be called upon to issue a new Commission; and there was nothing to prevent the machinery for a new trial being created by an Act of Parliament. He thought it was desirable, as this was a very serious departure, and a departure which he, for one, sincerely regretted, and which he viewed with very great apprehension, that if the change was to be effected it ought to be surrounded in every way by safeguards, as far as possible, especially when it had been already pointed out that the confidence of the Irish people in the administration of justice so to be administered was already shaken.

MR. WARTON

wished to remind the Committee that all this difficulty, and a very serious difficulty, indeed, it was, arose from the ill-considered nature of the clause. If last night the Committee had not exhibited that extreme desire to hurry through Sections 2 and 3 in the course of half-an-hour, they would have saved the time of the House by listening more patiently to the arguments of those who had given the subject mature consideration. He was not saying this for the purpose of embarrassing the Government, because, as far as his humble power went, he wished to give them every assistance; but he wished to point out that they were now a consultative Body, and the questions they were in consultation upon had reference to the constitution of a very complicated Court of Appeal. He was not surprised at the very large number of difficulties which had been raised in regard to the proposal of the Government. One difficulty was, to give an appeal at all on matters of fact. An appeal was generally confined to disputed questions of law; but he regretted to find that hon. Members, possessing minds and intellects of the highest order, like the hon. and learned Member for Dundalk (Mr. Charles Russell), were stooping to the level of advocates who endeavoured to get off a prisoner at whatever cost. He hoped still to see the Government take courage and strike out of the Bill everything in it that related to giving an appeal upon matters of fact. In regard to an appeal on matters of law, the Home Secretary had already stated what the practice was in the Court of Crown Cases Reserved. In that Court, six Judges could over-rule the opinions of five; but by the constitution of the Court of Crown Cases Reserved, an appeal on matters of law was heard, in the first place, by five Judges; and if these Judges differed, then it was heard before all the Judges. Therefore, when the right hon. and learned Gentleman the Home Secretary expressed an opinion that there was an analogy between the two cases, that analogy was not quite complete, because, if any Judge out of the five differed at all, the case must go to the Court above. Personally, he objected to this appeal altogether; and, considering the limited number of the Irish Judges, and also the fact that they would already have appointed three to act upon the Special Commission, he did not see how the ordinary business of the country was to be conducted if many of these cases came before the Court of Appeal. He would suggest to the Government that the Bill was also defective in reference to the reasons of the Judges which were to be submitted to the Court of Appeal. A shorthand-writer was to take notes of the evidence; but he failed to see how any shorthand-writer could give the reasons of the Judges. He could only give what he imagined to be their reasons. So far as the present Appeal Court was concerned, the practice was for the Judge who tried the case to state a case for the information of the Court above; but there would be no such case stated for the information of the Court above, under this Bill. He would suggest that no point of law should be reserved unless it had been taken by the counsel at the trial.

MR. SERJEANT SIMON

said, he concurred with his hon. and learned Friend the Member for Dundalk (Mr. C. Russell), that there was no analogy between an appeal on questions of fact and the appeal to the Court of Crown Cases Reserved on questions of law. The jury found a man guilty of the offence charged against him, and the subject of appeal was always upon questions of law, irrespective of any question of fact. The matter for the consideration of the Court of Crown Cases Reserved was simply and solely the question of law, and it was no part of the province of the Court to determine a question of fact. The arguments of his right hon. and learned Friend the Home Secretary were, therefore, illogical. This was a matter which went altogether beyond the do- main of politics. It was a matter which had to do with public sentiment, and the House of Commons ought not to ignore that public sentiment. Take the case of murder. They gave an appeal from three Judges to a higher Court, composed of six Judges, or, taking the lowest number mentioned in the Bill, five Judges. Did anyone think that it would be possible for any Government to execute a man who was found guilty by three out of five Judges only? He ventured to think not. The public feeling would be outraged, and such a Court would not be endured at all. If that were the case, why should they not require unanimity? Why should they be satisfied with a conviction by three Judges, when they felt that they ought not to act upon it, and when they dare not act upon it, because, if they did, they would outrage public opinion? Then why should they not require that all convictions upon matters of fact should be unanimous? At the same time, he could not support the Amendment, because he thought it was too large. But if the hon. Member would introduce words requiring the decisions of the Court to be unanimous on questions of fact, he should certainly support it, and he hoped his hon. and learned Friend would re-consider the Amendment with that view. He was afraid that the Bill was altogether an outrage upon the natural instincts of Englishmen. Englishmen were accustomed to trial by jury, and it was a tremendous wrench all of them were making when they agreed to take away that safeguard which had been provided for the liberties of the people, and when they were deliberately depriving a prisoner of the judgment of his peers. He deeply regretted that the Government had been obliged to introduce a clause of this kind. He was afraid, however, that it was an inevitable necessity, although he should have much preferred to see some other mode adopted for dealing with the question. Perhaps a jury of 18 instead of 12, requiring the unanimous verdict of 12 out of the 18, would meet the case. He presumed this question had been fairly considered by the Government, but that they had not been able to see their way to the adoption of such a plan. But as they had taken away trial by jury in order to meet a special emergency, he thought they were bound to guard it in every way, so as not to ignore the well-known principles of our jurisprudence further than was absolutely necessary. It had always been held that there should be unanimity on questions of fact. The real analogy lay there, and not between the provisions of the present Bill and an appeal on questions of law. The true analogy would be obtained by carrying out the principles of unanimity on questions of fact, leaving questions of law as they were now to be decided in the Court of Appeal by a majority. He hoped the hon. and learned Member would accept this suggestion, and amend the Amendment.

MR. O'SHAUGHNESSY

said, that it was not the principle of giving a prisoner the benefit of the doubt that they were now trying to assert. What they were trying to assert was the principle of unanimity. If the Bill were allowed to stand as it was now drawn, the result would be this, that out of eight men who tried a case, six would be able to convict, although two might dissent, and be in favour of an acquittal. But as the law stood at present, before they convicted, they required the unanimity of 12 men. He quite agreed with the Home Secretary that a new trial was not to be thought of, and for this reason, that the going before the Court of Appeal would be in reality a new trial. It was proposed to take a case before a new Court composed of five Judges, not for the mere purpose of trying questions of law, but for re-hearing the whole case and deciding on questions of fact. That, in itself, was a new trial, and ought to be guarded by all the circumstances of a new trial. The Home Secretary failed to see any distinction in regard to the purposes of the Bill between questions of law and questions of fact; but already an analogous tribunal existed for the purpose of deciding criminal appeals, and in that tribunal the distinction which the Home Secretary failed to see was drawn. The law fully recognized that a majority on questions of law might be sufficient, but that in regard to all questions of fact there must be absolute unanimity. There was also this distinction to be borne in mind. An attempt had been made to create an analogy between this case and the case of the Court of Crown Cases Reserved; but there was no analogy whatever between the two Courts. One was a Court solely for the consideration of questions of law; while the Court of Appeal it was proposed to establish was as much a Court for the decision of matters of fact as a jury of 12 men. The right hon. and learned Gentleman said that the cause of the dissent of two Judges was a thing which would weigh with the Executive just the same as a recommendation of the jury to mercy, when it became a question of inflicting a severe punishment. But he was sorry to say that this was not the experience they had had in Ireland in analogous cases. They had had cases in Ireland where jurymen had disagreed one day, and where a new jury was sworn to try the same case, and on the second jury convicting, the sentence was carried out. Therefore, they could not hope that this result would invariably follow on the dissent of two Judges, because the mere fact of a disagreement on the part of the first jury, in the case he mentioned, showed that there were doubts entertained, and that there was a considerable amount of dissent. He would suggest to his hon. and learned Friend the Member for Kilkenny (Mr. Marum) that he should add to the Amendment words to this effect— That the appellant should be acquitted unless the whole Court of Criminal Appeal concurred in the determination of the appeal on questions of fact. He thought it might be possible to add these words, and the principle of the majority deciding on questions of law would not be disturbed.

MR. MARUM

said, he should be glad to avail himself of the suggestion which had been made on the other side with reference to the distinction between matters of law and matters of fact. The Amendment would then run in this way— The appellant shall he acquitted on matters of fact unless the whole Court of Criminal Appeal concur in the determination of the appeal. He would, however, if the Government accepted this suggestion, leave the drafting of the clause in its details to the Government themselves. After the expression of opinion which had been elicited from all sides of the House, he trusted the Government would, in the face of so great a body of feeling, consent to the amendment of the clause in its present shape. He concurred in the statements which had been made that, as a matter of sentiment, the proposal to deprive the people of Ireland of trial by jury would be very distasteful in this country, and, therefore, it ought to be safeguarded in every shape and form with reference to the sentiment of the people. They were now going to try persons accused of crime by a Judge without a jury, and they ought to throw around the proceeding all the elements of trial by jury as far as possible. One of the most important of these elements was that there should be unanimity in the decision. If the Government desired to secure the confidence of the Irish people in their legislation, they would certainly accept this Amendment.

MR. GIBSON

said, that, as for high considerations of proved expediency, it was thought right to suspend trial by jury for the purposes of this Bill, why, in the name of common sense, should they set up in its place an impossible and unworkable tribunal? They should either retain the existing system with all its imperfections, or else set up in its place something that would work satisfactorily. When hon. Members talked of safeguards, what was evidently present in their mind was that it was desirable to make the working of the new tribunal impossible. They might surround it with so many safeguards that they would make it absolutely impossible to arrive at any decision at all. Take the statements that had been made that there must be unanimity throughout in regard to matters of fact. It was said that the Court of First Instance was to follow the analogy of the jury, and to be unanimous in their conviction of an accused person; but they had got more than that in the Bill, as framed by the Home Secretary. If a jury disagreed and was not unanimous, the consequence was not an acquittal, but that the man could be tried again. Hero, however, the Court of First Instance was so constituted that if it disagreed, the analogy of the jury system was not followed, but an acquittal resulted. That being so, he should like to ask if the analogy of the jury was followed up? The three Judges of First Instance were supposed to be in the place of a jury, but in the existing system of a criminal jury trial there was the power of getting a second trial before another jury. There was nothing of that kind hero. In addition to the changes he had indicated, there was the power of taking the case to another Court, on dissatisfaction being expressed at the result—because, really, it came to that, without any certificate of the Judge that there were reasonable grounds for an appeal. On the mere motion of the criminal that ho would like to have another chance, and without any suggestion from the Bench that they themselves desired to have certain cases referred, the case could be reviewed. The prisoner, who naturally would always be dissatisfied with every sentence, and extremely dissatisfied with every conviction, had power to bring on the case again on an appeal from one tribunal to a larger tribunal; and the contention now was, that that larger tribunal was again to be subjected to all the analogies of a jury trial. If that were done, they practically surrounded the case with what were called safeguards to such an extent that they ran the risk of giving far greater impunity to crime under the new system than could possibly exist under the old one. In the Amendment suggested by his hon. Friend the Member for Kilkenny (Mr. Marum), the hon. Member himself departed from the analogy of the jury system, because in the event of the Court of First Instance being unanimous upon the question of guilt and sentence, the Court being composed of three of the highest Judges of the land, the case was to go before a tribunal of five Judges. In that tribunal the judgment might be affirmed by four to one, the four being four of the highest Judges in Ireland. Practically, therefore, there would be seven to one in favour of a conviction; but the result would be that the dissent of the one Judge would acquit the prisoner. The effect of the dissent of the one Judge would not be the same as the disagreement of a jury, but would amount to a direct acquittal. He thought it was impossible to carry safeguarding to a more absurd extreme.

SIR WILLIAM HARCOURT

said, he had listened very carefully to the debate, and he was bound to say that it had not altered the views he had already formed on the subject. He thought his hon. Friend the Member for Limerick (Mr. Synan) would see how utterly impracticable it would be to give a new trial. It was absurd when, for instance, a man had been unanimously convicted, and four Judges out of five had affirmed the decision, that the dissent of one Judge should operate to send the case for a fresh trial. The result would in that case be three distinct trials. In his opinion, the introduction of such a provision would entirely defeat the object of the Bill; and, after all, they would not get rid of this doubt which was spoken of as being of so much importance in regard to the sentiment of the people. Even if a new Court confirmed the decision of the first tribunal, the prisoner would always be able to refer to one Judge as having been in his favour; and however many Judges might give a decision in the case, and however many convictions there might be, he would always be able to turn round and say there was one Judge who differed. Therefore, no trial would, in the least degree, cure or mend the evil they were asked to guard against. The only question to consider was, whether they would get a sufficient preponderance of opinion on the part of the Judges in the case. His hon. and learned Friend (Mr. C. Russell), who, no doubt, had had great experience, had stated that the Court for Crown Cases Reserved was always confined to the consideration of questions of law. His hon. and learned Friend said the questions brought before that Court were technical questions. But they were not all of them technical questions. Take the question of treason. Supposing an appeal to the Court of Crown Cases Reserved were made in a case of this kind, and the question was whether a certain thing was treason or not. Certainly, that was not a technical question, but it was a question of substance and of Common Law,whether particular conduct of moral guilt amounted to treason. The matter would stand thus. There would be certain conduct on the part of a certain man, or of a number of men, and the question of law would be whether that conduct constituted treason. They allowed that to be determined by the vote of one Judge. It was quite true that by long immemorial practice unanimity was required in all cases that were tried by a jury; but when they came to a Bill which changed the whole of the procedure in cases of this kind, there was no sort of reason why they should be bound by anything beyond the desirability of the thing. Certainly, nothing which had occurred during the course of the debate had altered his opinion, and the suggestion which had been made to confine the unanimity to questions of fact would do very little towards removing the evils that were complained of in regard to dissenting Judges. He was bound to say, having carefully considered the whole subject, that he saw no reason for departing: from the principle laid down in the Bill.

MR. O'DONNELL

said, he was not much surprised at the line of argument used by the Irish Representative of the Front Opposition Bench (Mr. Gibson)— or, rather, the Representative of Irish coercion on the Front Opposition Bench, for the term "Irish Representative" was rather a misnomer. The right hon. and learned Gentleman the Representative of the University of Dublin objected to the multiplication of safeguards in connection with the new tribunal. The drift of the right hon. and learned Gentleman's speech was to support the proposition that the great thing was to hang somebody; and it must be remembered, in justice to the right hon. and learned Gentleman, that that was the great principle of the packed jury system during all the long years of Tory domination in Ireland. Juries were then so constituted that they certainly hung the men they were ashed to hang. Her Majesty's Government were not satisfied with this packed jury of Judges; but they objected to having even unanimity in their packed jury. It must be said on behalf of the old system in Ireland that a packed jury had to be unanimous. They had now a distinct packed jury, and the fact that the jurors were paid Government nominees, instead of being unpaid supporters of law and order under the old system, was by no means an argument in favour of the new packed jury. It was only yesterday that the Home Secretary mentioned in that House that the appeal to the five Judges would be really a new trial on new facts. Well, he wanted to know why unanimity was to be required in regard to the facts brought forward at the first trial, and unanimity was not to be required in regard to the new facts— which were, at least, matters of as great importance—that were brought forward on the second trial? The Government asked them to consider the case of four Judges being in favour of the guilt of the prisoner on the second trial, and one Judge being in favour of his acquittal; but it might be the case that three Judges only were in favour of finding the prisoner guilty, and that two Judges might be in favour of an acquittal, and yet the Government would hang the prisoner on a bare majority of one vote in a packed jury of Government nominees. They had been talking about the effect of all this on popular feeling in Ireland. He asked the Committee to consider for a moment what must be the effect upon a packed jury of Government nominees. He asked what must be the effect on public opinion in Ireland of a man being hanged on a single vote in a packed jury of Government nominees? The Government might call that execution as long as they liked; but the people of Ireland would call it murder. He said that a man convicted in a lower Court upon his first trial got his second trial, as he had a right to get it, in the Superior Court, and was there only condemned upon new facts, and upon new evidence given by new witnesses. This constituted absolutely a new trial, and he was to be condemned on that absolutely new trial on the vote of three Government nominees against two. The people of Ireland would consider that the negative of two nominees against conviction would be of more weight than the decision of three nominees for the Crown. When a man was condemned to death by only three votes against two, when he suffered that penalty of death, would it not be universally agreed in Ireland that that man had been judicially murdered? He asked the Government what must be the effect of such a rule as this bearing upon the great question of evidence? That difficulty could not be removed by the proposals of this Bill, for although witnesses would always be ready to give evidence before a fair tribunal, before a tribunal where the dice were cogged against the prisoner's life; the witness before such tribunal would, in fact, share the odium of the tribunal itself; aye, and in the tribunal of his own conscience, he would feel himself an accomplice in that judicial murder. Let it be remembered that the only ground on which the Government refused trial by jury was the ground of the alleged partiality of jurors. If it were not for the partiality of jurors they said they would be happy to main- tain the existing jury system. That was the statement of Her Majesty's Government; but they could not, on their own principles, impugn the partiality of the tribunal which they themselves selected; and where, then, was the ground of their objection to unanimity on the part of a jury consisting of impartial and intelligent Judges? In this case the question of unanimity could not arise in an ordinary way, because this jury was to be composed of impartial and intelligent jurors. But the Government denied that intelligent and impartial jurors were to be obtained, and that, therefore, they were obliged to have a jury of impartial and intelligent Judges. Why not, a fortiori, insist on the unanimity of the tribunal of impartial and intelligent Judges? The Government attacked either the intelligence or the bona fides of their own tribunal for the purpose of insuring the condemnation and execution of the accused. The Government, then, professed their want of belief in the capacity of the new Judges, because, had they regarded these Judges as capable, intelligent, and honourable men, they would have insisted upon a verdict by unanimity of votes. That was their own declaration upon their own case. Were this simply a matter of dealing with a question of law, he could understand the action of the Government, because the majority of Judges might be led to decide on the question of law, but not so on questions of fact. The appeal to this Court would constitute a second trial as completely and absolutely as the proceedings before the Special Commission Court or the Court of First Instance was the first trial. As he had already pointed out, it was a new trial, upon new evidence that had never been before the jury on the first trial; and he said that, if unanimity were necessary in the case of the first trial, it was still more necessary to have unanimity on the part of the Judges in the second trial, because the jury in the second trial would be labouring under that great disadvantage to the accused man—they would be labouring under that injury to the accused man—namely, the fact that the jury of Judges in the first trial had found against him. In order, then, to redress the balance in favour of the prisoner, in order to make his trial really a new trial, it was absolutely necessary to have unanimity amongst the new jurors; other- wise, unquestionably, the new tribunal would be prejudiced against the prisoner by the fact that the first trial went against him. He said, therefore, it was absolutely necessary, if the Court was not to be detested by honest men from one end of Ireland to another, as judicial murderers, to have unanimity on the second trial, where so great a prejudice already existed against the prisoner, owing to the result of the first trial. If there remained any respect for the old maxim, "That it was better that 99 guilty men should escape rather than that one innocent person should suffer," then he said there was no justification or palliation for the conduct of a Government which would insist upon having a man tried for his life, found guilty, and executed by the mere majority of one individual in a jury of only five jurors.

SIR EARDLEY WILMOT

said, he proposed to amend the Amendment of the hon. Member for Wexford (Mr. Healy) by substituting for the words, "whole Court of Criminal Appeal," the words, "four-fifths of the Court of Criminal Appeal."

THE CHAIRMAN

said, that the Amendment could not now be put, inasmuch as the Question before the Committee was, "That the words proposed to be left out stand part of the Bill."

Question put, and agreed to.

MR. MARUM

said, he understood that the hon. Member who last addressed the Committee had an Amendment to move to the clause; if that were so he would not now move the Amendment standing in his name.

THE CHAIRMAN

said, the hon. Member for South Warwickshire came up to the Table of the House with an Amendment, and he informed him that it was impossible that such an Amendment could be put, because the Question before the Committee was, "That the words proposed to be left out stand part of the Bill." That Question was then put to the Commitee, and decided in the affirmative.

MR. SYNAN

said, he had an Amendment to Sub-section 3, which he considered he had a right to move.

THE CHAIRMAN

said, the words were now part of the clause, that the determination of any appeal should be according to the determination of the majority of the Judges who heard the appeal. The hon. and learned Member for Chelsea (Mr. Firth) had an Amendment upon the Paper next in order, and, consequently, his Amendment had priority.

MR. OALLAN

rose to Order. The hon. and learned Member for Chelsea, not having moved his Amendment, was it not in Order that an Amendment which another hon. Member wished to move could be put?

THE CHAIRMAN

said, the hon. and learned Member for Chelsea had given Notice of the Amendment on the Paper after the word "appeal," and it was his right now to move that Amendment.

MR. CALLAN

rose to Order. The words down to "appeal" had not been agreed to by the Committee.

THE CHAIRMAN

said, that the words down to "appeal" had been carried by the Committee on the Question "That the words proposed to be left out stand part of the Clause," which was determined in the affirmative. The words did, therefore, stand part of the clause. That being so, after the word "appeal," the hon. and learned Member for Chelsea had priority.

MR. SYNAN

begged to remind the Chairman that he had given him Notice that in case the Amendment of his hon. and learned Friend were negatived, he should move one that was substantially the same. He was quite willing to put his Amendment after the word "appeal."

THE CHAIRMAN

said, he must ask the hon. Member not to disturb the proceedings of the Committee. The hon. and learned Member for Chelsea, according to all rule, had priority to move his Amendment after the word "appeal." When that was settled the hon. Member could move.

MR. FIRTH

said, he was bound to say, if the question was one of right, that he should be quite willing to waive his right. If, however, the question was one of the ruling of the Chair, he should proceed with his Amendment.

MR. SYNAN

said, as the hon. and learned Member for Chelsea had not moved, he would now submit his Amendment to the Committee. In doing so he did not intend to occupy any length of time, as the subject had already been fully discussed.

Amendment proposed, In page 3, line 9, to insert "on the determination of any appeal the whole Court shall agree to secure conviction."—(Mr. Syrian.)

THE CHAIRMAN

pointed out to the hon. Member that the words "determination of any appeal shall be" were already part of the Bill. He would now call upon the hon. and learned Member for Chelsea.

MR. FIRTH

said, he accepted the ruling of the Chair, and begged to move the Amendment standing in his name. He had already remarked that we had never had a Court of Appeal on questions of fact in criminal cases, although such appeal existed in civil cases where the Court was equally divided. There was no provision in this Bill as to the number of Judges being odd or even. Having regard to the fact that the Courts of Law had always had a tendency in favour of innocence, he thought, in case the Court were equally divided in opinion, that the appeal should be allowed.

Amendment proposed, In page 3, line 10, after "appeal," insert "but if such Court be equally divided in opinion, the appeal shall be allowed."—(Mr. Firth.)

Question proposed, "That those words be there inserted."

SIR WILLIAM HARCOURT

said, he regretted that he was unable to accept this Amendment; but he had given instructions for an Amendment to be put down to the effect that the Court should always consist of an unequal number of Judges.

MR. FIRTH

said, on that understanding, he was willing to withdraw his Amendment.

Amendment, by leave, withdrawn.

Amendment proposed, In page 3, line 10, at the end of the Clause, to add the words "except in questions of fact, when such determination shall depend on the unanimity of the judges."—(Mr. Redmond.)

Question put, "That those words be there added."

The Committee divided: —Ayes 55; Noes 216: Majority 161.—(Div. List, No. 111.)

MR. JUSTIN M'CARTHY

asked if it were in Order to add, after the word "appeal," the following words:— Except in cases where fresh evidence shall be adduced, in which case the appeal shall only be rejected by the unanimous decision of the Court.

MR. HEALY

asked whether it would be in Order to move the omission of the sub-section altogether?

THE CHAIRMAN

said, the sub-section had been agreed to.

SIR WILLIAM HARCOURT

said, that the Amendment suggested by the hon. Member for Longford (Mr. Justin M'Carthy) was inadmissible in its present form, inasmuch as it would not agree grammatically with the clause as it stood.

THE CHAIRMAN

said, the Amendment of the hon. Member for Longford, as far as he understood it, was substantially the same as the Amendment which had just been negatived by the Committee. That Amendment was that, except in questions of fact, there should be unanimity; whereas the Amendment suggested by the hon. Member for Longford was that, except in questions of new fact, there should be unanimity on the part of the Judges. The Amendment, therefore, was not in Order, and could not be put.

MR. REDMOND

said, he should not occupy the attention of the Committee at any great length in moving the Amendment which he was about to propose, inasmuch as it turned upon questions which had already been discussed; but, as had been pointed out in the course of this discussion, he was bound to say that it seemed to him the most monstrous thing that a man should be executed for murder in a case where two Judges actually protested that he was innocent. The execution of a man under the present clause of the Bill was really dependent upon the voice of one Judge. It was not fair to say that they must take into consideration that the three Judges in the previous trial had been unanimous in their decision, because, in the previous trial, the facts before the Court might have been incomplete, and the five Judges might have to try the man on a totally different state of facts and evidence to that which the Court below had before it. In point of fact, it would be an entirely new trial, and in the Court of Appeal a man's life depended, as he had said before, on the opinion of one Judge. It was, he thought, useless to argue in favour of a clause which contained a provision of this kind, and it was useless to think there would be any respect among Irish people for a tribunal which convicted a man on one vote. If the Government desired that the people in Ireland should believe that it was not the wish of the House of Commons that a man should be convicted, although innocent, and executed for crimes which he had never committed, it was essential that they should make some provision of the kind which he ventured to propose in his Amendment. He desired that there should be a new trial. Hon. Members had been told it would be a mischievous thing to have three trials; but there had been instances of three trials in cases where juries had disagreed; and he could not see why, now that the safeguard of a jury had been taken away, there should not be a third trial. It had been pointed out clearly by the hon. and learned Member for Dundalk (Mr. Charles Russell) that there would be no difficulty in this; and, as he (Mr. Redmond) had already pointed out, in reality there would not be three trials, for the trial he had in view would be only a second trial. It would be that the Judges were to decide on a new set of evidence and new facts. Now, the right hon. and learned Gentleman the Member for the University of Dublin (Mr. Gibson) seemed to object to the introducing of any safeguards into this Bill. [Mr. GIBSON: No.] The right hon. and learned Member said "No"—he did not actually use the words that he objected to the introduction of any safeguards; but he said that their introduction might lead to interference with the tribunal, and that they would not work satisfactorily. He seemed to go on the principle that trial by jury should be maintained in its present form, or else that they should sweep away every safeguard that the accused man should have. He was unable to see how the right hon. and learned Gentleman could get out of that position if he objected to introduce safeguards whereby the accused possibly might escape conviction for crimes they had not Committed, by the provision which enabled the Judges to disagree upon new facts. He could not see how he could object to the introduction of this Amendment, if no new evidence were forthcoming before the second tribunal. He could understand the right hon. and learned Gentleman arguing in favour of the proposal in the Bill; but where new evidence might be forthcoming, and where new facts might have come to light, he said then that it was right that the Judges should be just as unanimous in the second case as they were in the first. The Amendment he was about to move exempted from the operation of the Bill cases of treason and treason-felony and cases of murder.

Amendment proposed, In page 3 at the end of the Clause, to add the words "except in cases of murder, treason, and treason felony, when such determination shall depend on the unanimity of the judges."—(Mr. Redmond.)

Question proposed, "That those words be there added."

SIR WILLIAM HARCOURT

said, the hon. Member had very fairly admitted that there was not much more to be said upon the subject. The hon. Member asked whether it was conceivable that any man's life and death, that the fate of a man, should depend on the voice of one Judge, either in England or Ireland? But, in the Court of Crown Cases Reserved, it was well known that, in matters of law, the fate of a man might depend upon the voice of one man. He had said, over and over again, it was plain, if a man was not guilty in law, he was just as much not guilty as if he were not guilty in fact; and if you executed a man not guilty in law, it was just as great an outrage as executing a man who was not guilty in fact. A man might be executed under circumstances in which a considerable number of Judges had declared their opinion that, according to the law of the land, his life was not forfeited.

MR. T. P. O'CONNOR

said, there was a family resemblance of a very strong character in the reception which the right hon. and learned Gentleman gave to all the Amendments of an important character proposed from those Benches. The attitude of the right hon. and learned Gentleman, from the beginning, had been one of absolute non possumus. He had not admitted a single Amendment of importance.

SIR WILLIAM HARCOURT

said, he had accepted 10 yesterday.

MR. T. P. O'CONNOR

said, the right hon. and learned Gentleman, for all he knew, might have accepted 400; but be still maintained his position that be had rejected every Amendment of importance emanating from those Benches. The Amendment before the Committee expressed not only the views of hon. Members near him, but it was also supported by Members of various shades of political opinion on the opposite side of the House—the noble Lord the Member for Calne (Lord Edmond Fitzmaurice), for instance, and other hon. Members. To every one of these Amendments—supported as they had been by a consensus of opinion from all independent sections in that House—the right hon. and learned Gentleman had given a refusal. When the right hon. and learned Gentleman sought support for the measure which he now endeavoured to carry through the House, he applied to those two right hon. and learned Gentlemen the Members for the University of Dublin, who knew—probably better than he did—the purpose to which this Act would be applied in Ireland. The right hon. and learned Gentleman, and his two supporters on the Front Opposition Bench, looked upon this Bill not as a means of putting down crime in Ireland, but as a means of giving a few more years of life to that system of landlordism which he (Mr. T. P. O'Connor) said was doomed. His hon. Friend the Mover of the Amendment before the Committee objected that the life of a man should depend on the voice of one Judge. The right hon. and learned Gentleman the Home Secretary, in reply, said that that was a thing which took place every day. Now, he (Mr. T. P. O'Connor) had a large faith in the powers of the Parliamentary face of the right hon. and learned Gentleman; but he thought upon that occasion, in putting forth such a statement, he had almost excelled the unrivalled powers which he possessed. The right hon. and learned Gentleman said a man's life depended on the word of a single Judge, because it rested with a single Judge to lay down the law.

SIR WILLIAM HARCOURT

said, that the majority of one in the Court of Crown Cases Reserved decided the question of law. [Mr. T. P. O'CONNOR: No.] The hon. Member said "No:" but, unless he were misinformed, the hon. Member was not in the House at the time his statement was made. His statement was that, no doubt, on appeal in case of murder in the Court of Crown Cases Reserved, the question was determined by the voice of one Judge whether the accused was guilty on questions of law, although a minority of five Judges might be of opinion that he was guilty on questions of fact.

MR.T. P. O'CONNOR

said, it was an utter perversion to say that the life of a man was dependent on the voice of a single Judge in England in the same sense as it would be under this Bill. He challenged the right hon. and learned Gentleman to produce from recent history a single case in which a prisoner had been executed, or whose execution depended on the voice of a single Judge. So far as the Court of Crown Cases Reserved was concerned, the result might depend on the verdict of a single Judge; but the Committee must bear in mind that behind that Judge there stood the verdict of 12 jurors. The right hon. and learned Gentleman had not adduced a single argument to show that the Court of Appeal would not be virtually deciding a new case in matters of fact and matters of law. He (Mr. T. P. O'Connor) altogether disputed the dictum of the Home Secretary—high authority as he was on matters of law —that a decision on a matter of law was the same as on a matter of fact. In the Court of Crown Cases Reserved, the smallest breach of regulations at the trial, or the smallest breach of the Law of Evidence, or of any other detail, might invalidate a trial for murder. He appealed to the right hon. and learned Gentleman opposite whether that was not so? But if there was a second trial it might involve the question of fact, whether the offender was at the time in the place where the crime was committed. Would anyone say that the small details which he had alluded to as invalidating the trial of the Court below were of the same importance as the question of an alibi, which might be raised in the case of a prisoner accused under the present Bill? He thought the Home Secretary very much mistook the spirit of himself and his hon. Friends if he supposed that he was going to carry this Bill easily through the House of Commons without the most strenuous opposition, so long as he took his cue from the two right hon. and learned Gentlemen upon the opposite Benches—the Members for the University of Dublin.

MR. FIRTH

said, that the argument was complete that there had not been any occasion where a man had been found guilty and punished for the offence of murder, unless the tribunal before which he came was unanimous in their judgment with regard to the facts on which their judgment was based. It could not be suggested that in Ire-or any where else a man could be hanged for murder if two Judges of the land said that the identity of the man who committed the offence had not been established.

MR. MACFARLANE

said, he wished to treat this question from a common-sense point of view. He imagined that it was impossible, where the guilt of a man was thoroughly and absolutely established to the entire Court of First Instance, consisting of three Judges, that there should not be a real unanimity in the case of the Appeal Court, consisting of five Judges. He assumed that the Government did not wish to hang anyone who was not certainly guilty, or punish them for manslaughter or any other offence dealt with in this Bill; and, therefore, he could not see why they should so much object to the unanimity proposed. As the matter stood at present, there would be eight Judges trying the case, assuming that there was an appeal. Now, if six Judges were capable of agreeing on matters of facts and matters of law, surely eight Judges might also agree. He believed it would be quite as easy to get unanimity in the upper Court as in the lower Court. As he had already pointed out, it was not conviction that was wanted, but the punishment of guilt; and he was, therefore, quite at a loss to understand why the Government so determinedly opposed everything relating to this Court of Appeal, which was in favour of the prisoner. Her Majesty's Government should remember that they were dealing with exceptional legislation, and that, therefore, exceptional Amendments were permissible. It was only reasonable to suppose that persons who objected to the Bill as a whole would object to it in all its parts. Moreover, it was absolutely their duty to reduce the mischievous effect of the Bill as far as it lay in their power. It was with that object that hon. Members on those Benches, and upon the Benches in front of him, proposed Amendments seeking to mitigate the effect of the Bill. He was sorry that the arguments which had been adduced in favour of this Amendment had been thrown away upon the Home Secretary, of whom it might be said, in the words of the popular song, that— In spite of all temptation To understand another nation, He remained an Englishman.

MR. JUSTIN M'CARTHY

said, it was hard to understand the views of the right hon. and learned Gentleman the Home Secretary; but he supposed that the difficulty in his own case arose from the fact that he did not possess a judicial mind. As far as he understood the right hon. and learned Gentleman, he gave it as his opinion that fact and law were one and the same subject, and that the Judges were just as well qualified to judge of fact as a jury could be. If that were the position, why not abolish the entire system of trial by jury? What could be the use of going through the form of putting 12 men into a box, when a single Judge could settle both questions of fact and law to the satisfaction of the persons charged and of the community in general? After all, this section of the Bill constituted, in certain cases, distinctly a new trial. Take, for example, the case where fresh evidence was adduced. There the Court had before them an entirely new set of facts. In the first trial, a man could only be convicted on the unanimous decision of three Judges; but, on the second trial, he was to be convicted by the majority of the Judges. Now, he urged upon the Home Secretary whether this was not peculiarly dangerous in the case of trials for treason or treason-felony, because, although a Judge might be able to decide fairly on fact and law taken separately, yet, where so much depended on the relation of facts to law, and where constructive law came in to assist the imperfect statement of evidence, it was highly dangerous to have anything short of a unanimous verdict. Now, the right hon. and learned Gentleman was well acquainted with history, and at one time he had taken the honoured name of "Historicus;" he must, therefore, have in his mind what evidence was furnished by English history with regard to trials for treason. That being so, he asked the right hon. and learned Gentleman where, in the history of the country, there was any instance in which the integrity of the Judges had broken down so much as upon trials for treason. He assumed that the right hon. and learned Gentleman was aware that the Judges had frequently endeavoured to coerce juries, who had stood up against the constructive law laid down by them into convicting persons of treason. In the trial of Lord Dundonald, then Lord Cochrane, the decision was notoriously unfair, and the jury were almost compelled to find according to the ruling of the Judge, rather than according to their own view of the facts. With those tilings in recollection, it was most dangerous and reactionary to introduce a tribunal which took away trial by jury from the man who most required it, and left men accused of treason wholly at the mercy of the Judges.

MR. DILLON

said, he wished to ask the Home Secretary whether the difficulty with respect to Irish Judges was not likely to arise in regard to the Irish Judges. Nobody, he said, proposed to do away with the unanimity required in the case of a jury; but it was proposed to do away with that in the case of the Judges on the assertion that no jury could be obtained who would not give way to terrorism or to sympathy with crimes, and, therefore, would not convict a prisoner. It appeared to him that the only real argument that could at all apply in the case of not requiring unanimity among the Judges, who were practically a jury for trying matters of fact, was that the Judges seemed to have sympathized with treason and murder; and he did not see how the Government could get out of that dilemma. Then there was another consideration in favour of the Amendment, which he was glad to see proposed, and that was this—he always believed that one of the greatest objects, from a Constitutional point of view, to be gained by the institution of trial by jury, and one of the reasons which induced the people of England to value it so much as a protection for liberty, was not so much that it came into action in regard to ordinary crime, as that the common sense of the country should stand between them and a too strict interpretation of the law on treason and treason-felony, and which might place the subject at the mercy of an Executive too often infuriated by agitation. It was not so long ago that in England—perhaps not 50 years ago— men held their lives simply by the fact that an English jury could not be got to bow strictly to the legal interpretation of the law on treason; and he knew that the Law of Sedition, which was passed for the purpose of dealing with certain men in Ireland, if legally and strictly interpreted, would place himself and other men who took part in the Land League movement outside the pale of the law. He had heard it laid down by an Irish Judge that practically almost any political action would come within the law on sedition. He had studied that law, and he believed no man could condemn the action of the Judges without being held guilty of sedition, if the interpretation of the law was strained. There was nothing to prevent anyone who had been trained to lay down the law in the strictest way from sweeping into the net of these Acts every man who spoke strongly in condemnation of the action of the Government. If these laws had been enforced in England according to their strictest letter they would long ago have been repealed or modified; but the reason why they had been left on the Statute Book was that the juries were a sufficient security to the subject against the law being strained. It was now proposed to take from the people of Ireland that protection of the common sense of juries, and to leave them at the mercy of Acts; but if this was enforced he was sure public feeling, and the feeling in this House, would revolt against that enforcement. He could not understand why the Government had determined to withdraw that protection from the people of Ireland in regard to political action, and also to refuse to give to them the slight protection of the unanimity of the Judges. He could not see why such refusal did not amount to an impeachment of the Irish Judges; and surely, from an English point of view, it was a very much worse charge than ever the Irish Members had aimed at the Irish Judges. They were prepared to prove that the Irish Judges, by their speeches from the Judicial Bench, by their well-known opinions in private, were not fit to try matters of fact where politics were involved. Nine out of every ten people in Ireland believed that, but they had never said the Irish Judges had sympathized with treason or murder; and, therefore, the refusal to accept this Amendment was a more severe charge against the Irish Judges than the Irish Members had ever made against them.

DR. COMMINS

said, he hoped the Committee would credit those who supported this Amendment with having no intention to propose anything that would protect any person who was really found guilty of murder. What they wanted to do was to protect the innocent, and, as was done in every country that had any jurisprudence at all, to introduce checks against the abuse of the powers under this Act. Judges might have a clearer view of evidence, and be better able to sift the facts and convince each other by argument, than a jury; yet juries were practically unanimous. In England they seldom acquitted, and, notwithstanding all that had been stated, he ventured to say that in Ireland juries seldom acquitted where the evidence showed the accused to be guilty. The Irish Members wished to protect accused, but possibly innocent persons against an abuse of power or a mistake by those who had to administer the law; and one of the great advantages of the English jury system—the praises of which had been sung by the greatest of English political philosophers—was that the jury interposed the strongest and best protection against arbitrary, illegal, unconstitutional, or corrupt action by Judges. Juries stood between innocent persons and a possible abuse of the power of the law. It seemed to him that those who argued in favour of the clause had forgotten that the Criminal Law was an instrument that might be used for a great many purposes than the putting down of crime. It did not lie with the Government to set the law in motion. Any person might set the Criminal Law and all its powers in motion against any person—

THE CHAIRMAN

I must point out to the hon. Member that the only Question before the Committee is whether there shall be a unanimity among the Judges of Appeal in regard to treason, treason-felony, or murder, and there is no question of unanimity of juries.

DR. COMMINS

said, his point was that in these cases of treason or murder the unanimity of the Judges of Appeal was as necessary as with the three Judges in the Court of First Instance, because without that unanimity the one great protection previously interposed between the people and the arbitrary power of Judges was taken away—namely, the protection of interposing juries. If a ease was clearly proved by the Court of First Instance, it could not he supposed that the Judges of Appeal were not as clear-sighted and as equally anxious to ascertain the facts as the Court below. New light might be thrown on a case; new evidence might be produced before the case reached the Court of Appeal, in view of which, though it might convince one or two of the Judges, a majority of Judges was yet to be sufficient to support a conviction. There ought not to be that distinction at all, because the protection of juries was being taken away, and the only protection against an abuse of the law was in the unanimity of the Judges of Appeal, as in the case of the Judges of First Instance. In cases of treason, treason-felony, or murder, the Government was not only the nominal, but the real prosecutor. The Government were the power that moved the whole case; they had all the strength to secure a conviction. They could not, and would not, be separated in the minds of the people from the prosecutor; and the Judges were so identified with the Government as their appointees and paid servants, that they ran the enormous risk of having their opinions coloured, and their minds to some extent prejudiced—at all events, they would be believed to be prejudiced, and to have their minds warped by their identification with the prosecutor in these cases. In regard to cases of murder, there was an equally strong reason for unanimity, because there, although the Government were not identified with the Judges, and were not the actual prosecutor, but only nominally so, private malice in every case of murder might accuse any innocent person, and weave round him a web of seeming evidence which it would require the greatest possible skill to appreciate, and there would be one thing which the Judges would not have—namely, the popular instinct, the popular power of knowing whether a witness was telling the truth or not, and of appreciating the character of the prisoner. All these things the Judges would want. The power of the law might be misapplied, and the Judges might be made the instruments of atrocious crimes in regard to innocent persons accused of murder. Let the guilty be punished, but with proper safeguards for the protection of innocent persons. If the Judges were not to be degraded by being made the instruments of private vengeance; if that distrust which at present justly existed in Ireland with regard to the Judges was to be removed, there must be unanimity. The last point of the matter was wholly important. It used to be a principle of English law that it was better that 99 guilty persons should escape than that one innocent person should suffer; but this clause reversed that principle, and seemed to say that it was better 99 innocent persons should suffer than that one guilty person should escape. That was how the Act would be read by the people, and the disposition to regard the law as their enemy would in crease instead of diminishing. He could quite understand how difficult it was for English and Scotch Members to realize the state of things existing in Ireland; but every hon. Member was acquainted with the history of his own country—

THE CHAIRMAN

The hon. Member is not speaking to the Amendment, and it will be impossible to proceed with the work of the Committee if hon. Members discuss the whole Act and all the clauses upon a single Amendment. The Question before the Committee is, whether the Judges of Appeal shall be unanimous in cases of treason, treason-felony, and murder; and I must ask the hon. Member to keep to that subject.

DR. COMMINS

said, he was trying to keep to that question, and he was about to ask English and Scotch Members what, judging from the history of their own countries, would have been the state of things, if the Judges had had sole power, without juries, to convict people by a majority? Yet that was the kind of tribunal now to be set up in Ireland; and he maintained that, in all these cases, there ought to be this unanimity in the Court of Appeal as in the Court of First Instance.

MR. SYNAN

said, that a great Revolutionist had stated that audacity was the great secret of success in a revolution. He was sorry the Home Secretary was not then on the Treasury Bench, as he wished to pay the right hon. and learned Gentleman a compliment. It seemed to him that audacity in a statesman and a lawyer was also the great secret of success, for the Home Secretary had attempted to repeat, in the presence of lawyers in that House, that the Judges of the land in this country every day found persons guilty of treason and treason-felony and murder. He had never heard such a proposition; but the oftener it was contradicted the oftener it was repeated by the Home Secretary. The right hon. and learned Gentleman wished to deceive those who were ignorant of the law, or he did that knowing that he was perverting language by using words in a double sense—confounding verdicts of juries on facts with questions of law—and he wished to see whether simple Members would accept that notion. The plain question was this. The Government proposed to make the three Judges a jury; they were to form the Court, return the verdict, and pronounce judgment. Then there came the Court of Appeal, which was substantially a Court for a new trial, and again the Home Secretary wished to deceive the Committee.

THE CHAIRMAN

The hon. Member has used the expression that the Home Secretary tried to deceive the Committee. I am sure he did not intend to use that expression, and the hon. Member will withdraw that expression.

MR. SYNAN

said, he would not say the Home Secretary had tried to deceive the House, but that he had used language calculated to deceive the Committee. The primary Court was to be a Court and a jury, and to pronounce judgment; but to the Court of Appeal a different rule was applied by the Home Secretary. The right hon. and learned Gentleman called it a Court of Appeal; but it was not a Court of Appeal upon questions of law. It was a tribunal to try facts, and really to enter upon a new trial; and their verdict or judgment would not be an affirming of the Court below, but a new verdict or judgment. In the Court of First Instance the three Judges were to be unanimous; and upon what principle was it that the five Judges in the Court of Appeal need not be unanimous in pronouncing judgment, not upon law, but upon facts? Upon what principle was there a different rule, and upon what principle was it that three out of five Judges could convict a man of treason, treason-felony, or murder? The proposition was ridiculous, and could not for a moment hold water. It could not be believed in by those who made it, and it was calculated to deceive Members of the House who were unacquainted with the law, and had to accept the authority of Gentlemen on the Treasury Bench.

MR. D. GRANT

said, he regarded the Amendment as one which it would be wise for the Home Secretary to accept. The present position was such that it was of the greatest importance that the Irish people should feel strongly and distinctly that the judgment given was on the lines of an effort to do justice to them. If, however, under existing circumstances, the people saw sentences passed simply by a majority of Judges they would feel that they were not being fairly treated. He, therefore, hoped the Government would accept the Amendment, not so much because of the question itself, as on account of the evil of a wrong impression in the minds of the people; and he should vote for it himself.

MR. LEAMY

said, it appeared to him that for the next three years prisoners would not get the benefit of the doubt. In cases of capital offences the Judges always told the juries that if they had any reasonable doubt they should acquit the prisoner. Irish Members were now asking that in cases in which an appeal was made—in cases of treason, treason-felony, or murder—the Judges to whom the appeal was made should be unanimous in their judgment; and they were asking that simply because it would often happen that new facts would be adduced, which, if they had been produced at the first trial, might have prevented the Judges finding the prisoner guilty. The question had been put several times to the Government whether they would dare to hang a man who was found guilty by a majority of Judges. Everybody knew they would not, and yet they refused to accept this Amendment, knowing that they would not dare to hang a man in England for murder or high treason unless the Judges were all agreed. Under these circumstances, he thought the Government ought to accept the Amendment. Although the Irish Members had proposed many Amendments, the Home Secretary had not assented to any single important Amendment. This Amendment, however, was supported not only by Irish Members, but by many supporters of the Government; and he thought it was nearly time that the Home Secretary should show some readiness to meet the Committee by accepting this Amendment.

MR. BIGGAR

said, that in cases of treason or murder the prisoner always got the benefit of the doubt, and even if only one Judge out of eight—which was the smallest number that should deal with questions of this kind — was in favour of acquittal, it must be quite clear that there was a substantial doubt as to the justice of the sentence; and more especially was it desirable that the law should not be pressed in such a case, because, of course, if a sentence for murder was carried out, there was no means of restoring a man to life should he be proved to have been innocent. Even in England, where Party prejudices did not run as high as in Ireland, innocent people had often been executed for murders. Not very long ago the man Habron was convicted at Manchester, and he would have been sent to penal servitude if another man had not confessed that he had committed the crime. He believed that some, at least, of the Members of the Government did not desire to have the power of sending people in Ireland to the scaffold when there was reasonable doubt; and in Ireland, under the old system of jury-packing, people had been hung who had afterwards been proved to be perfectly innocent. A disagreement among the jury had in many cases been very beneficial, where it was subsequently proved that the accused persons were innocent, although if they had been convicted they would have been hung. There was the case, for instance, of George M'Cormack in Tipperary, who had a quarrel with two brothers, and afterwards went to America, without telling anyone of his intention. He was supposed to have been murdered, and the men he had quarrelled with, being the last men seen in his company, were put on their trial for his murder. The first jury disagreed, but another jury found them guilty, and they were executed; and yet, a short time afterwards, the man returned from America, and so proved conclusively that the men executed were innocent.

THE CHAIRMAN

The hon. Member is not speaking to the subject before the Committee, which is the question of appeal in a particular class of crimes.

MR. BIGGAR

said, he understood the question to be whether the Judges should be unanimous; and he submitted that he was thoroughly justified in showing that there ought to be unanimity, by the fact that innocent persons had been executed for murder. In Armagh, a few years ago, a man was condemned and hung who was afterwards proved to be innocent; and in another case, in which the governor of the gaol represented to the Dublin Castle authorities that he had evidence of the innocence of a certain prisoner; but they insisted on his being hung, because they did not wish the public to discover that they had convicted an innocent man. That was how justice was administered in Ireland; and he did not think there ought to be very rigid rules in discussing such matters.

THE CHAIRMAN

I have already warned the hon. Member, and must now ask him to keep strictly to the Amendment before the Committee.

MR. BIGGAR

said, if the Judges were practically unanimous, there could not reasonably be any doubt as to the guilt of a prisoner; but if two out of the five were of opinion that he was not guilty, did the Committee think the authorities would be justified in hanging the man, more especially as according to the police arrangements in Ireland any evidence which the police might have which was calculated to tell in favour of a prisoner would be suppressed, and nothing would be brought forward but what they thought most likely to bring a conviction? It was also known that means would be used by the police to get evidence of a perfectly untrustworthy character with regard to an alleged crime. He thought he had made it pretty clear that such a thing as hanging a prisoner by a bare majority of the Court of Appeal ought not to be allowed, and that the Government ought not to hold that the life of a person should be taken when, in the view of some of the Judges, he was as likely to be innocent as guilty. In all such cases there must be absolute certainty—or, at least, there should be no reasonable doubt; but if two of the Judges held that the prisoner was not guilty there would be something more than a reasonable doubt. Under the circumstances, he thought the Government might agree to this particular Amendment. Then with regard to the question of treason or treason-felony, he did not know that that part of the subject was of so much importance, because, according to experience, for many years no prosecution had taken place in Ireland, or, he believed, in England, for treason or treason-felony, so that the presumption was that during the three years during which this Bill would last probably no person would be put on his trial for either of those offences. At the same time, the fact remained that the Government would have so much power of influencing all the legal machinery in Ireland, and that they had situations for Judges and their relatives. It seemed to him that in these cases, in which the Government and the accused would come into such direct conflict, absolute proof ought to be required to convict a man of guilt. In England, in former times, persons who agitated for the reform of Parliament were put on trial for high treason, with, however, the intervention of a jury. But in this case that intervention was to be taken away; and he could not see on what grounds it could be refused in regard to such charges as treason or treason-felony, such charges being liable to so much doubt as to what constituted the offence. A great deal had been said as to what constituted an offence of treason or treason - felony; and it would only be right that in all cases where there was a reasonable doubt the prisoner should have the benefit of the doubt.

SIR EARDLEY WILMOT

said, he could not support the Amendment, because he did not see why there should be less unanimity among the Judges than among jurymen. He deeply regretted that his Amendment had not been put, prescribing that a proportion of four-fifths of the Court of Appeal should decide. Hon. Members on both sides of the House were prepared to accept that proposal; but he was sure it was some unintentional haste on the part of the Chairman which prevented his putting the Amendment.

THE CHAIRMAN

There was no haste on the part of the Chairman. I did simply what it was my duty to do. The hon. Member brought up an Amendment, which could not be moved, on the Question "That these words stand part of the Clause," and not being able to put that Amendment, it was my duty to put the Question, "That these words stand part of the Clause."

SIR EARDLEY WILMOT

said, the Chairman had not intimated to the hon. Member in charge of the Amendment—

THE ATTORNEY GENERAL (Sir HENRY JAMES)

rose to Order. The Chairman had ruled that the Amendment could not be put; but the hon. Member was now questioning that ruling, and he submitted that the hon. Member could not have done that even at the time, and it was doubly objectionable to do so now.

SIR EARDLEY WILMOT

begged to move that the Chairman should now leave the Chair.

Motion made, and Question proposed, "That the Chairman do now leave the Chair."—(Sir Eardley Wilmot.)

THE CHAIRMAN

The hon. Baronet cannot question what I have already ruled. The Question is that I now leave the Chair.

COLONEL NOLAN

said, he thought the Committee need not go on quite so fast, although the Motion to leave the Chair was a very useful safety-valve. An hon. Member had been bringing in cases to show—

THE CHAIRMAN

The hon. and gallant Member is now raising another question of ruling which has been previously settled, and upon this Motion the hon. and gallant Member cannot raise that question.

COLONEL NOLAN

said, the question before the Committee was that of the unanimity of Judges, and the hon. Member had been giving certain cases in which innocent persons had actually been hung; and he thought hon. Members ought to have an opportunity of referring to general matters—

THE CHAIRMAN

The hon. and gallant Member cannot, on this Motion, discuss any general Amendment. The hon. Baronet had a right to move that I leave the Chair; but the Committee cannot discuss the ruling I have already given.

COLONEL NOLAN

said, he believed any Member could discuss any general subject connected with the Bill on the Motion to leave the Chair.

THE CHAIRMAN

The hon. and gallant Member is under some misapprehension. The hon. Baronet has moved that I do leave the Chair with the hope of discussing questions of Order upon the ruling I had given on an Amendment being out of Order; but he was not in a position to discuss the ruling, and, therefore, the object with which he moved does not exist. As to the claims of the hon. and gallant Member to discuss the Bill generally on a Motion to leave the Chair, that latitude may exist in the House; but it is certainly not allowed in Committee when the Amendment alone is under consideration.

MR. BIGGAR

said, he understood that if the Motion of the hon. Baronet should be agreed to, this Bill would fall to the ground; and, therefore, he submitted that the Committee might discuss some of the questions connected with the merits of the Bill. On the Motion to leave the Chair he thought it was advisable to discuss the general merits of the question.

THE CHAIRMAN

The hon. Baronet moved that I do leave the Chair for the specific purpose of raising a point of Order; but the particular point which the hon. Baronet wished to raise could not be brought before the Committee, and any observations must now be upon a point of Order within the Motion. The hon. Baronet's observations were not within the Motion.

MR. BIGGAR

said, that the Chairman's last ruling corroborated his own view; but as the Motion was not made to get leave to discuss some question already decided, and as something had taken place which might kill the Bill, he thought the Committee had a right to discuss the Bill upon this Motion.

THE CHAIRMAN

The hon. Member must see that it is perfectly impossible to discuss the general merits of the Bill in Committee under any circumstances. The subject of discussion must be the Amendment which is before the Committee for the moment.

COLONEL NOLAN

asked whether the Committee might not speak on the Bill upon the Motion to leave the Chair, believing that on such a Motion they were at liberty to discuss any question connected with the Bill. If this Motion would be fatal to the Bill if carried, it was important to discuss everything connected with it; and probably some hon. Members, who would be shut out by the Chairman's ruling, would wish to enter upon some general observations which they could not make on specific Amendments.

LORD EDMOND FITZMAURICE

said, the discussion in the Committee had hitherto proceeded in so orderly and amicable a manner that he hoped the ill-timed intervention of the hon. Member for South Warwickshire (Sir Eardley Wilmot) would not be allowed to act as a firebrand thrown into the discussions. He thought he might draw attention to the fact that this Motion had not been made by an Irish Member, but by an English Conservative, and the full responsibility of the Motion should rest upon that hon. Member's shoulders. He earnestly entreated the hon. Member not to press his Motion.

SIR EARDLEY WILMOT

said, he was the last person in the House to wish to interpose and delay the Business of the Committee. He had hitherto given a cordial support to the Bill, and should continue to do so; but, in rising to speak to the Amendment, he had simply referred to what he thought had been an injustice to himself in regard to an Amendment respecting the unanimity of the Court of Appeal. He regretted that he had done anything to delay the Business of the Committee, and he would respectfully ask leave to withdraw his Motion.

MR. BIGGAR

said, that this incident was only another illustration of the absurd idea some people had as to trying to save time. The invariable results of these attempts to save time was a waste of time. He believed he had a right to offer such arguments as he thought were legitimate with regard to any particular Amendment before the Committee; and he thought the hon. Member was entitled to the thanks of the Committee for having given them an opportunity of complaining of the manner in which some of their arguments had been treated.

Motion, by leave, withdrawn.

Original Question, "That those words be there added," again proposed.

MR. METGE

said, it was of vital importance to everyone connected with Ireland to endeavour to enforce this proposal. The whole theory of this clause of the Bill was that the jury System had broken down in Ireland, and two or three methods of reforming that system had been suggested—one was to raise the status of the jurymen, the other was to limit the number who would decide. By this clause Judges were to take the place of a jury. It was the first duty of all Irish Members to press one and all their Amendments; but, apart from that, he thought the three crimes which it was proposed to place under the control of the Judges were those very crimes upon which the Government had admitted that it was possible to get juries to convict. In regard to charges of treason and treason-felony and murder— and certainly in regard to treason-felony—there had not been a single case brought forward in which a jury had decided in opposition to the weight of evidence; and in regard to murder, he did not believe a jury could be found in Ireland at this moment who, if a case were proved, would deliberately decide against the evidence. Some cases might be cited in which that seemed to be the fact; but Irish Members who had had experience of these things in Ireland knew how such cases were got up, and for that reason he held that they ought to offer their most strenuous opposition to these proposals. He wished the Government could see their way to making some concession in the direction urged by the Irish Members, even if only by raising the majority of Judges from a majority of one to a majority of four. But whether they did that or not, a new departure was being proposed in regard to Ireland. Under the old system the juries were invariably packed by the Government; but under this new system the jury would not only be a packed jury, but it would be a jury of paid officials who had been chosen because of their known opinions and the tendency of their education and career officially and privately. Further, each of them was a member of that Executive which would, in the first instance, issue the laws, which the Judges would after words have to decide; and that, he believed, would upset for ever any little confidence that existed in Ireland in regard to the judicial system. That confidence was now very slight, and, in his opinion, that fact was one of the causes of undetected crime being so rife in Ireland. The people were in direct antagonism to the judicial system in Ireland, and regarded it as intended to oppress them; and this new tyrannical measure, he was confident, would sweep away from the mind of every man. who had any national aspirations all respect for the judicial system in Ireland, and increase to an enormous extent that crime which the Bill was designed to prevent.

MR. O'DONNELL

said, they had arrived at an extremely disappointing part of the Bill. It had already been pointed out that the Government now asked the Committee to authorize the execution of accused persons in Ireland by the casting vote of a single paid servant of the Crown. It was clear that if that provision was maintained, the object of the Bill was not to do justice, but to exasperate the people. The result of the Bill would be only to perpetuate the régime, of exceptional government. It would be impossible in any excess of crime to introduce so monstrous a proposal into England. The hon. Member for Meath (Mr. Metge), who had just spoken, appealed to the Government whether they had in view, or professed to have in view, the reconsideration of this subject. He (Mr. O'Donnell) believed that the Government had nothing in view in this matter but the satisfaction of English prejudice, and in that point of view this clause was admirably calculated to carry out their purpose. It was a simple act of savage Lynch law, carried through the House with certain State formalities. A proposal that a jury of this kind, composed of salaried Crown servants, were to be empowered to sentence a man to death by the casting vote of a single one of their number, on every point of morality, was infinitely below the verdict of a tumultuous Texan crowd who sentenced a horse-stealer or a murderer to instantaneous execution, and proceeded to carry it out on the bough of the nearest tree. For his own part, he sincerely regretted the obstinacy with which the Government stuck to this clause. He had never despaired of conciliation between England and Ireland until now. He altogether discarded the idea that it was through any real horror of crime that this Bill was being thus persevered with.

THE CHAIRMAN

The hon. Member has just come into the House, and he seems to think that the Question before the Committee is that the clause should stand part of the Bill. That is not so; but what is before the Committee is only an Amendment dealing with murder, treason, and treason-felony.

MR. O'DONNELL

said, the right hon. Gentleman was mistaken. He had been present when the clause was moved, and during three-fourths of the discussion which had taken place upon it; and, although it was only a clause for the trial of Irishmen for treason, treason-felony, and murder, still the observations he was making were intended to impress upon the Government the propriety, the prudence, and the expediency of giving Irishmen a somewhat greater chance for their lives than was proposed to be given to them by this Bill. He was sorry that the right hon. Gentleman should mistake the object with which ho was speaking, because, naturally, these interruptions from the Chair interfered with his line of argument, and retarded the progress of the discussion. He would conclude, therefore, by saying that a measure such as this came very badly from the Government of a country whose great rivers rolled hundreds of victims of undiscovered murder to the sea every year. If this clause were passed without Amendment, if the Government of England insisted upon Irishmen being liable to conviction and execution upon the casting vote of a single bad Government servant, he could only say that it was the bounden duty of every Irishman to prevent the success of the Bill by every means in his power.

MR. BIGGAR

said, that, before the Amendment was put from the Chair, he wished to make an appeal to the right hon. and learned Gentleman the Homo Secretary. The right hon. and learned Gentleman had charge of the Bill, and some people said it was through his influence that so stringent a measure was being brought in. Whether that was so or not he did not know, and did not very much care. If it were the case, he presumed that it was only for the purpose pointed out by his hon. Friend the Member for Dungarvan (Mr. O'Donnell), that in the exigencies of the so-called Liberal Party it was considered necessary. But he wished to make an appeal to the right hon. and learned Gentleman on this ground—that as far as his (Mr. Biggar's) observation went with regard to his conduct in the capacity he filled as Home Secretary under the present Government, he had always shown, as far as he (Mr. Biggar) could form an opinion, a desire to mitigate the severity of the law, and not to press it to the full extent of its power. They all knew, or, at any rate, it was the common report, that not nearly so many executions in proportion to the number of convictions had taken place under the régime of the right hon. and learned Gentleman as had taken place under other Governments. They knew, further, that the right hon. and learned Gentleman had mitigated the punishment of juvenile offenders; and throughout he had exercised the Prerogative of Mercy invested in the Crown to an extent that was unknown in this country prior to the right hon. and learned Gentleman's term of Office. Under these circumstances, he would appeal to the right hon. and learned Gentleman whether he would not act towards the people of Ireland, as far as his influence went, upon the same principle and upon the same lines as those which he had considered it his duty to act upon in his capacity of Home Secretary? If the right hon. and learned Gentleman would do so, he (Mr. Biggar) had not the slightest doubt in his own mind that the right hon. and learned Gentleman would be at once prepared to agree to the Amendment now before the Committee, which simply required that a man, convicted and sentenced to capital punishment by the Court of First Instance, should have an appeal to a second Court, and that the Judges of the Appeal Court should be unanimous before the conviction could be affirmed. That was the entire length to which the Amendment went. If the question contained such an element of doubt that one or two out of the five members of the Court of Appeal should be in favour of an acquittal, he thought, with propriety, the sentence of the first Court should not be carried out. In regard to the other part of the clause, the right hon. and learned Gentleman must be fully aware that in political cases prosecutions never took place except in a time of great excitement; and it was clear that convictions would never take place at all unless the evidence and proof of guilt was of the strongest nature. If there was any room for reasonable doubt as to the guilt of a prisoner charged with treason or treason-felony, it was the custom to give the prisoner the benefit of the doubt. A case of treason, or treason-felony, was not so strong as one of murder, because a man convicted of treason, or treason-felony, would only, at the worst, be sent to penal servitude, with almost the certainty that, after a lapse of time when the excitement had subsided, he would receive a free or conditional pardon. It was different in a case of murder. A prisoner, under such circumstances, ran the risk of being tried, in a time of excitement, by partizan Judges, and of having his life sworn away, although he might be perfectly innocent.

MR. HEALY

said, he thought that his hon. Friend the Member for Cavan (Mr. Biggar) had put the case with extreme moderation; and he trusted that the Home Secretary would see his way to accept the Amendment. The right hon. and learned Gentleman found it necessary to interpose in many cases in order to mitigate the severity of a sentence; but the necessity for that interference would be much stronger in a case of treason or treason-felony, or murder, where there was a liability of penal servitude or execution following, than in many of the trumpery cases in which he was now required to interpose. If the right hon. and learned Gentleman was willing, in his own person, to supersede the action of the Courts after sentences were inflicted, the objection to the clause would probably not be so strong; but he did not understand that the right hon. and learned Gentleman would take upon himself the power of reviewing the sentences passed by the new tribunal. At the same time, he could not be of opinion that the Irish Judges — men of learning and legal knowledge—could be persons against whom the Government could apply the faintest suspicion of partiality, or otherwise they would not impose upon them this extra duty. Therefore, when they came to revise a sentence, and were not unanimous in the view they took, he (Mr. Healy) hoped the right hon. and learned Gentleman would be prepared to listen to their doubts in the manner his hon. Friend the Member for Cavan (Mr. Biggar) had pointed out. The right hon. and learned Gentleman the Home Secretary, who himself exercised the Prerogative of Mercy in many cases, remained quite passive when it was argued that a similar prerogative should be exercised by the Irish Judges. The objections to this provision of the Bill were not at all answered by the argument that the Judges were Irish. Per- sonally, he would rather be governed by Englishmen, under the present régime in Ireland, than by Irishmen. He would rather have the Home Secretary as an Irish Judge, or as an Irish Law Officer, than an Irishman. He said this with all respect for the Irishmen who filled Offices of the Crown in Ireland; but he would rather deal with Englishmen for this reason. An Englishman was brought up, to a large extent, without bias; he was not reared in the region of prejudice, and fed on all the miserable stories of past Irish history. For his part, he had no sympathy with the complaints that were constantly made in Ireland, that the Chief Secretary, the Lord Lieutenant, and other officers, were Englishmen. He thought it was much better to have Englishmen than Irish place-hunters who sold their country; and it was no answer to the argument now raised to say that the Judges were Irish. He would far rather have an Englishman, reared in English traditions, than a man reared in the Irish traditions prevalent in Dublin Castle. Therefore, he had no objection to urge to the fact that the Lord Lieutenant of Ireland and the Chief Secretary were Englishmen. In this case they had a number of Irish Judges to deal with. No doubt there were a limited number of them who were above all suspicion; and, in the opinion of the Irish people, the verdict given by Baron Fitzgerald in one of these cases, upon a single appeal, might overtop and outweigh the decision of all the other Judges who might sit with him on the Irish Bench. He would give an instance to justify this assertion. A case recently occurred down in Kerry, in which a prisoner was convicted of posting a "no rent" notice; and in a case, either at Leitrim or Carrick-on-Shannon, Baron Fitzgerald refused to allow it even to go before a jury. He (Mr. Healy) knew that was so as a matter of fact. Then, again, in Ireland, it was highly probable that they might hare a Judge, with a strictly judicial mind. taking one view, and a partizan Judge taking another; but it appeared to be the view of the Government that a conviction must be had at all hazards, or that justice would not be done. But if the Government really desired justice to be done, they must pay some respect to the popular feeling. In England, not many years ago, they found all the people disagreeing with the decision of the Judge who tried the case of the gas stokers. In that case the whole popular mind was against the judgment of Mr. Justice Brett, and the Home Secretary was obliged to interfere and cut down the imprisonment which had been awarded. That was a case in which the unanimous opinion of England was against the Judges, and the public opinion in England was allowed to have its due effect. But in Ireland what did they have? He was not going to find fault with the Attorney General for Ireland; but he knew that the right hon. and learned Gentleman had been brought up to entertain certain views in regard to treason. The Bill dealt with treason, and it was now proposed to exclude treason, treason-felony, and murder from a non-unanimous decision. The right hon. and learned Gentleman was a very amiable gentleman to deal with in that House. He was always courteous to the Irish Members, and easily approached; but the right hon. and learned Gentleman upon the Bench would be a very different mortal, and he said it with all due respect to the right hon. and learned Gentleman. The right hon. and learned Gentleman would, in that case, have to deal with his own personal views and his own conscientious opinions of what strict law was. The right hon. and learned Gentleman's view of law, however, might be perfect, or it might be imperfect; but, whatever it was, he would have the full power of enforcing it; and he had already intimated that, in his view, the declarations of the hon. Member for the City of Cork (Mr. Parnell) amounted to rank treason. The right hon. and learned Gentleman, in the course of time, would find his way to the Irish Bench; and holding this view that certain declarations amounted to treason or treason-felony, with all due respect to the opinions of the right hon. and learned Gentleman, he thought it was necessary that any view taken by the Irish Judges should be unanimous. He asked the Government if it was worth their while to get verdicts by what he might call the skin of their teeth? Let the Home Secretary, for a moment, take a review of public affairs. Was it desirable, in a time of political passion—and he should not be afraid of this particular portion of the Bill, except in a time of political passion—to put in force a clause of this nature? He was not apprehensive of any verdict which an Irish Court of Appeal might give, except in a moment of political passion. They all knew very well that if his hon. Friend the Member for the City of Cork (Mr. Parnell) had been before the Judges when the Prime Minister made his Guildhall speech, he would inevitably have been sent into penal servitude, seeing the views which prevailed at the time with regard to treason and treason-felony. Taking a careful review of human agencies, was it worth while, seeing that the number of cases would be very few in which this Amendment would come into operation, to waste the time of the House by resisting it? Without putting it as a question of law, but rather as one of administration, was it worth the while of the Government, as public administrators desirous of seeing justice done, to enforce so arbitrary an opinion? While the Home Secretary in that House was so very severe on O'Donovan Rossa, and what he considered to be the rampagious course of certain Irishmen, as an Englishman the right hon. and learned Gentleman was an ornament to the position of Home Secretary; and he could scarcely pay a sufficient tribute to the merits of the right hon. and learned Gentleman in that capacity. But, while he said this, in his dealings with Irish crime the right hon. and learned Gentleman had no stronger opponent than he (Mr. Healy) was. He thought the right hon. and learned Gentleman had allowed his views and prejudices to run away with his judgment; and he asked him whether, on this particular point, he could not import something of English judicial temper into the matter? Why should he allow O'Donovan Rossa to run away with his judgment? They were dealing with a very simple state of facts. He doubted whether two such eases would come up during the three years the Bill was to last. There would certainly not be more in which the majority of the Court of Appeal would differ from their judicial brethren. He would, therefore, appeal to the Home Secretary whether the matter was worth contesting, for, as, he confessed, there was no principle involved in it? He really could not see why the Government should refuse to give way upon the point. The Home Secretary had obtained several clauses of the Bill with great celerity. It was astonishing, considering that the right hon. and learned Gentleman had not given way upon a single point, the absolute ease with which he had obtained the most important clause of the Bill. The right hon. and learned Gentleman was not able to make such rapid progress in the case of the Rabbits Bill, introduced a few years ago, although it only dealt with hares and rabbits, and not with the lives of the Irish people. On that occasion the House was kept up night after night by hon. Members who sympathized with British poachers. Then, why should not the views and feelings of the Irish Members be taken into account here? What was there in the position of the right hon. and learned Gentleman, as the man in charge of the Bill, to prevent him from casting away altogether this exceptional treatment of cases of treason, treason-felony, and murder? The Irish Members believed that the Irish Judges were appointed as a jury to try these cases, because they were Government nominees; and he should have thought the Government would desire to escape from the reflection that a few Government nominees might be afraid of the decision of the more impartial of the Irish Judges. He trusted that the Home Secretary would import into his decision on this point some of that judicial temper and of those attributes of merey which he had so signally displayed in dealing with the administration of justice in England.

SIR WILLIAM HARCOURT

said, that, after the personal appeal which had been made to him by the hon. Member for Wexford (Mr. Healy) and the hon. Member for Meath (Mr. Metge), he could not refuse to say a few words, notwithstanding the fact that he had already spoken several times on the subject, and had said all that he had to say. He had certainly not said much upon this particular Amendment, because he considered that the opinion of the Committee had already been taken very fully upon the principle involved in the Amendment. The hon. Member for Wexford (Mr. Healy) and the hon. Member for Cavan (Mr. Biggar) had been good enough to pay a very undeserved compliment to him upon the administration of the Department with which he was connected; but he wished to point out once more that the administration of the Prerogative of Mercy was a totally different thing from the decision which these Courts would have to give. He had already indicated that if any of the Judges differed upon questions of facts, it would be a very proper consideration to place before the Executive Government in reference to the carrying out of any sentence; and there was not the smallest doubt that a circumstance of that character would have the greatest effect upon the mind of a person occupying the position which he had now the honour to occupy. It would require very strong circumstances indeed to induce him to allow the execution of any person who had been recommended to mercy by the jury, and it would be the same in a case in which doubts wore entertained upon questions of fact. The hon. Member for Wexford (Mr. Healy) and the hon. Member for Cavan (Mr. Biggar) said the judgment might be confirmed by a majority of partizan Judges; but that was an argument which he (Sir William Harcourt) could not listen to. The real truth of the matter was that the Government had gone to the extremest limits in protecting the accused. In point of fact, the Bill placed a convicted prisoner in a much better position than he was in at present. There was ordinarily no appeal, either in Ireland or in England, upon facts at all. [Mr. HEALY: Yes; but there is a jury.] He assumed that a tribunal of Judges, for the purposes of the present Bill, would be thoroughly impartial; and, so far as the prisoner was concerned, would be quite as good as a jury. A prisoner tried in England would certainly be quite as safe, as fully under the protection of the law, and subjected as much to a merciful construction of the law, as he would be if tried before any jury. [Cries of "Oh!" from the Irish Members.] That, at any rate, was his conviction. In this Bill it was considered advisable to grant an unusual appeal simply from a desire, not to prevent a conviction by partizan Judges—for there was no reason to anticipate that any of the distinguished men upon the Irish Bench would assume the character of a partizan—but because, in creating a new and extraordinary tribunal, it was considered necessary to provide an appellate machinery in order to give a chance to prisoners which they would not have under ordinary circumstances. The Government felt that that was a desirable thing to do, because the tribunal was a new and extraordinary one, and because they thought it ought to be fenced round with reasonable provisions of this character. He could honestly say that that was the sincere desire of the Government. The hon. Member for Wexford (Mr. Healy) asked why they would not yield. They did not yield because they could not come to the conclusion that it would be right to yield. They had undertaken a grave responsibility in framing this Bill. Of course, they knew that objections would be taken to some of the provisions of the measure. It was only natural that there should be objections. Many of the objections were obvious, and were, of course, in the mind of the Government when the Bill was framed. They had carefully considered every matter, and they were quite aware that there was hardly any question upon which a good deal might not be said on both sides. He trusted that hon. Members opposite would give the Government credit for a desire to arrive at a right conclusion; and they had come to the conclusion that the course which they proposed in regard to an appeal was at once a safe and a humane course towards the prisoners themselves, and that it was also a course consistent with the fair and due administration of justice. Having come to that decision— and the House of Commons, after hearing the arguments on both sides, having pronounced, by a large majority, in favour of the view of the Government— was it reasonable to ask them now to yield to that which they deliberately thought was not the best plan? He was sure that hon. Members opposite would acquit him of anything in the nature of personal obstinacy, when he said that Her Majesty's Government declined to yield, because, in a matter of such consequence, they had already gone to the extreme verge compatible with the proper administration of justice and the maintenance of law and order in Ireland.

MR. HEALY

said, he would ask one question of the right hon. and learned Gentleman before the Committee went to a division. In providing for an appeal, the Government had made no provision in the Bill for the payment of fees to counsel in cases of murder, treason, and treason-felony. Would they be willing, in the event of an appeal to the Appellate Court in the case of a poor prisoner, to do what they had agreed to do in reference to the expenses of witnesses before the Court of First Instance?

SIR WILLIAM HARCOURT

said, that, in a matter of that kind, the Government would always be willing to do what was fair and reasonable; and the hon. Member for Wexford (Mr. Healy) would find no obstinacy in him on such a question.

MR. HEALY

Will the right hon. and learned Gentleman bring up an Amendment in that sense?

SIR WILLIAM HARCOURT

Yes.

Question put.

The Committee divided: —Ayes 35; Noes 64: Majority 29.—(Div. List No. 112.)

Motion made, and Question proposed, "That Clause 3, as amended, stand part of the Bill."

Notice taken, that 40 Members were not present; Committee counted, and 40 Members being found present,

MR. BIGGAR

said, the clause, as it stood, was of a most objectionable character, and its most objectionable feature was that it provided that if the Court of Appeal was composed of six Judges, and they were equally divided in opinion, the decision of the Court below must be confirmed and the conviction stand. In case of such a division of opinion, he certainly thought the benefit of the doubt ought to be given to the accused. There was also another objection to the clause, and that was that it did not recognize the right of appeal in criminal cases. If the Government had agreed to an Amendment which had been proposed to the clause now under consideration, the clause might have been beneficial in its operation; and, in addition, it would have acknowledged a principle of great importance, and one which, sooner or later, must become a common principle of English jurisprudence—namely, the right of appeal in criminal cases. It seemed preposterous that, in civil cases— in which, as a rule, the consideration was merely a monetary one—the right of appeal should be given; but that in criminal cases, in which the liberty, and possibly the life, of a man might be involved that right was withheld. Under all the circumstances, he considered his Party would do well to divide against the clause.

Question put.

The Committee divided: —Ayes 82; Noes 29: Majority 53.—(Div. List, No. 113.)